On June 14, 2011, we reported the decision from the U.S. District Court for the District of Colorado called EEOC v. JBS USA, LLC, No. 10-CV-02103 (D. Colo. June 9, 2011) concerning a thorny set of administrative issues facing Judge Philip Brimmer. The case related to a religious discrimination pattern or practice suit brought by the EEOC, and the decision reflected a deep-dive into the often complicated administrative prerequisites for individual plaintiffs to join that kind of EEOC lawsuit.

One of the key issues in any EEOC pattern or practice lawsuit is whether individuals who had not filed their own EEOC charges can join the case and intervene as individual plaintiffs, even though none filed a charge of discrimination – ordinarily a necessary step before filing a federal discrimination case.  These would-be plaintiffs typically rely on the “single filing rule” that, in certain circumstances, allows those who have not filed a charge to “piggyback” on a timely charge filer’s submission to the EEOC. 

In EEOC v. JBS USA, LLC, the Court called for more briefing on this subject, since it was unclear whether the employees who desired to intervene were similarly situated enough to the existing claimants (for whom the EEOC had sued) to piggyback on their charges.

On August 4, 2011, Judge Brimmer entered another decision in this case, and allowed over 100 additional parties to join the case as intervening parties, since they were able to show that their “claims [arose] out of the same discriminatory treatment, and allegedly occurred within the same time frame” as the exiting plaintiffs. Id. at 2. 

The Court added an additional curve-ball in the decision, though. The Court had already decided that the intevenors could join the case. JPS, however, had apparently vigorously opposed the timeliness of two of the existing plaintiffs’ charges: Salad and Mohammed. Although it did not have to, the Court noted that “given the attention that the parties have paid” to those two plaintiffs’ charges, it would address the timeliness of those claims as well. 

The decision chronicles how Salad and Mohamed had submitted intake questionnaires with the EEOC 300 days before their termination, but did not necessarily ask the EEOC to do anything with those claims. Other cases have held that a document that requests the EEOC to take action could be considered a “charge.” Id. at 4. Here, even though not explicit from the questionnaire, the EEOC apparently understood the questionnaires as a call for action, and drafted and sent formal charges to Salad and Mohamed, but not until after the expiration of the 300 day deadline (arguably making them untimely). Judge Brimmer determined that because the EEOC “treated the intake questionnaires as a request for agency action,” that was enough to convert them to a valid “charge.” In short, the Court decided that Salad and Mohamed “should not be penalized for the EEOC’s failure to return the charges in a timely manner.” Id. at 5. 

Although this final point was somewhere between dicta and afterthought, parties could rely on the rulings in this case to push for even more lax interpretations of what is considered a timely charge, or what is enough to be called a “charge” at all. Other Courts have taken a more strict view of these administrative prerequisites. The take-away from this ruling is that employers should understand that the EEOC will not always be required to play by even its own internal procedural rules, and judges are apt to err on the side of a liberal interpretation of procedural rules to allow allegedly injured individuals to participate in an EEOC pattern or practice lawsuit.